Marion v. Ochsner Clinic

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30257 Summary Calendar

LESLEY MARION

Plaintiff - Appellant

v.

OCHSNER CLINIC OF BATON ROUGE ET AL

Defendants

OCHNSER CLINIC OF BATON ROUGE; JOHN A. DEAN, M.D.; FEDERAL BUREAU OF PRISONS,

Defendants-Appellees

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 95-CV-692

November 21, 2001

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:* Lesley Marion appeals from the district court’s order

granting summary judgment in favor of the defendants in his

medical malpractice action brought pursuant to the Federal Tort

Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq. Under the

FTCA, liability for medical malpractice is controlled by the law

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-30257 -2-

of the state in which the alleged malpractice occurred –

Louisiana in this case. See Ayers v. United States, 750 F.2d

449, 452 n.1 (5th Cir. 1985). In order to recover damages in a

medical malpractice case under Louisiana law, among other

elements, the plaintiff must use medical expert evidence to

establish the standard of care applicable to the defendant

health-care providers. La. Rev. Stat. Ann. 40:1299.39 (West

2001); see Bailey v. State, 695 So. 2d 557, 559 (La.Ct.App.

1997).

Marion does not contest the fact that he failed to provide

the district court with medical expert evidence on the issue of

the applicable standard of care. Rather, he argues that such

evidence was not required in his case because the negligence he

suffered is of such a nature as to be obvious to a layperson. We

disagree. The complex medical and factual issues involved in

establishing how thoroughly the defendants were required to

search Marion’s person for the missing, implanted Penrose drain

is beyond the province of lay persons to assess. Thus, Marion

was required under Louisiana law to provide medical expert

evidence to establish the standard. See Pfiffner v. Correa, 643

So. 2d 1228, 1234 (La. 1994).

We have reviewed the record, the briefs of the parties, and

the applicable law, and we discern no reversible error. See

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Fed. R. Civ.

P. 56(e). The district court judgment is AFFIRMED.